Once a local authority has issued a Final Education Health and Care Plan (“EHC Plan”) the new setting named at Section I of the EHC Plan has a legal duty to admit the child from the date of the EHC Plan, and the previous setting, if different, ceases to have any such legal duty to admit. This remains the case even if the placement named in the EHC Plan is being appealed. Since appeals can take many months to be heard by the First Tier Tribunal Special Educational Needs and Disability (“the FTT SEND”) this can result in children or young people having to attend a setting for the duration of the appeal process that they will ultimately end up leaving; adding further stress and disruption to an already challenging situation. For this reason, parents often ask whether it is possible for a child to remain at an existing setting pending the resolution of an appeal. The answer to this, as with so many things in life, is “it’s complicated”.
In short, it is possible to agree with an existing setting and the local authority that a child can remain there until an appeal has been resolved (either at Tribunal or through negotiation), but neither the school nor the local authority are required to facilitiate this. Where a child is moving between the same Key Stage and particularly if the existing school is a state school (whether a maintained, academy or free school) it is often the case that schools and local authorities will not object to such an arrangement. However, if a child is moving between Key Stages 2 and 3 (i.e., primary to secondary) or into Post 16 provision, and the appeal process will extend into a new academic year, then this may not be possible. In such circumstances, and/or where no agreement has been reached (e.g., because the new setting named is significantly less expensive than the existing setting), the child will be expected to attend the setting named in the EHC Plan and failure to do so may leave parents open to enforcement action from the local authority for non-attendance. Should this happen, specialist advice from a solicitor familiar with education and criminal law should be sought.
To avoid such a scenario, parents/carers can advise the local authority and the new setting that they will temporarily, pending resolution of the appeal only, make arrangements for their child’s education (i.e. Electively Home Educate (“EHE”). Note that if the new setting named is a specialist provision the local authority will need to agree to this. Deciding to EHE is not something that should be undertaken lightly. Further information on EHE, it's legal implications and how it differs from Education Otherwise Than At School (“EOTAS”) can be found here.
If you are concerned about school placement, SEND Advocacy can provide advice and support. If you need someone in your corner to help you secure the education your child or young person deserves, contact us today.
